Draft Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019

Debate between Nick Thomas-Symonds and Martin Docherty-Hughes

Wednesday 27th February 2019 General Committees

[Nick Thomas-Symonds (Torfaen) (Lab)]

As always, it is a pleasure to serve under your chairmanship, Sir David. I want to make it clear that the Opposition do not oppose these regulations or the aim of having a functioning statute book without prejudicing the outcome of the negotiations. I will, however, make a number of observations on the regulations and on the wider security position with regard to our exit from the European Union. I hope that the Minister will be able to comment on them.

The UK participates in about 40 European Union measures that are meant to enhance security, law enforcement and judicial co-operation in criminal matters. They are very important tools, as is our participation in security-related EU regulatory systems. As the Minister has set out, the regulations essentially do three things. First, they seek to revoke or amend retained EU law that is directly applicable to our current domestic legislation. Secondly, they try to deal with a situation in which we would have a live case that has not been completed at the point of exit. That is a particular concern with regard to data: what would be the status of data that we held without a legal means to continue to hold it?

Thirdly, there is the issue of extradition. The Minister has referred to the 1957 Council of Europe convention on extradition, which, according to the explanatory memorandum accompanying the regulations, would be used

“in lieu of the European Arrest Warrant”,

but this is undoubtedly a far more limited measure than the European arrest warrant. It is clear from part 14 of the instrument that the UK and the EU would allow EU extradition requests from other member states in lieu of the European arrest warrant.

Paragraph 3 of article 2 of the convention itself states:

“Any Contracting Party whose law does not allow extradition for certain of the offences referred to in paragraph 1 of this article may, in so far as it is concerned, exclude such offences from the application of this Convention.”

In other words, an EU member state is required to surrender a wanted individual only if there is dual criminality across the two jurisdictions. That would be an important restriction on the regulations, and I would like confirmation that the Home Office is seized of it and an explanation of what it would do to plug that gap.

The Government’s own advice, as set out in the explanatory memorandum, states:

“In 2017/18, the UK arrested over 1,400 individuals on the basis of European Arrest Warrants…issued by the other 27 EU Member States. In the same period, EU Member States arrested 183 individuals on the basis of EAWs issued by the UK.”

It is a very important tool, and there will be practical consequences if the necessary measures are not in place.

[Martin Docherty-Hughes (West Dunbartonshire) (SNP)]

We will not vote against these regulations, but does the hon. Gentleman agree that they do not replace the fundamentally important European arrest warrant? The warrant has assisted constituents of mine, including the family of Lisa Brown in the Vale of Leven. Her mother was buried only last week, and Lisa is missing and presumed to have been murdered by a UK national. We used a European arrest warrant to get him from Denmark to Spain.

[Nick Thomas-Symonds]

I entirely agree with the hon. Gentleman, who is absolutely right. Although the Opposition do not oppose the narrowness of the regulations, there is a whole host of wider issues relating to security capacity. The hon. Gentleman is right to highlight the importance of the European arrest warrant mechanism, which has clearly been very important in the situation to which he referred. There is real concern about the potential state of uncertainty, and we need clarity about the impact of different outcomes on our security.

On “The Andrew Marr Show” on 3 February, the Home Secretary refused to dispute claims made by Sir John Sawers, the former head of MI6, that

“the harder the Brexit, the greater the damage,”

and by Neil Basu, the head of counter-terrorism policing at the Metropolitan police, that a no-deal Brexit would be

“a very serious flaw in our security arrangements.”

When pressed, the Home Secretary conceded only that there would be “a change in capability” and that

“most of these capabilities were only relevant for us from 2015 onwards.”

Yet it is clear, even from these regulations, that there is a loss of access to databases. I will come back to that issue.

There is lack of clarity in both the regulations and the explanatory memorandum, which states:

“The practical impact of a ‘no-deal’ exit on security, law enforcement and criminal justice cooperation with EU Member States is outside the scope of the provisions found in this instrument.”

That may be technically correct, but the Government need to set out what they plan to do to at least maintain our security capacity through co-operation with the EU27, and how they propose to build on it. I have read the Government’s assessment of the security partnership. It is a list of ambitions, but there is very little in the way of practical proposals to achieve them.

Quick access to information and co-ordinated work across borders is vital to our security, and there is a Europe-wide interest in working together to keep all our peoples safe. In their negotiations thus far, the Government have failed to get the Schengen information system—SIS II—and the European criminal record information system included in the political declaration. As I have indicated, this instrument would actually revoke access to databases such as Prüm and SIS II.

Similarly, the Government’s current promise to

“establish effective arrangements based on streamlined procedures and time limits”

is insufficient for the UK to maintain the benefits of the European arrest warrant. As I have said, reliance on the 1957 Council of Europe convention on extradition will not have the same effect, because it does not have the same capacity as the European arrest warrant.

Similarly, the Government have not identified exactly what our crucial relationship with Europol and Eurojust will be. To say that they are still working on the terms of co-operation is not good enough—it is nearly three years since the 2016 referendum.

Although the Opposition do not oppose the narrow measures in these regulations to have a functioning statute book on exit day, the Government have to focus on the vital issue of security co-operation and come up with workable solutions to maintain that level of co-operation, rather than allow that capability to be diminished.